The Lord Chancellor has unveiled plans to reform the judicial review process and provide courts with a greater range of powers
independent review of administrative law published
proposals seek to protect judges from being drawn into politics
part of plan to seek right balance between citizens’ rights and effective governance
A public consultation launched today (18 March 2021) will directly address the recommendations of an independent panel of experts – led by Lord Faulks QC - who considered evidence from a range of organisations, academics and legal professionals.
They investigated whether the correct balance is being struck between the rights of citizens to challenge Executive decisions and the need for effective government.
The panel found courts were increasingly considering the merits of government decisions themselves, instead of how those decisions were made – moving beyond the remit of judicial review.
The Lord Chancellor, Robert Buckland QC MP, said:
I am extremely grateful to Lord Faulks and his panel of experts for this timely and considered report.
We must seize this opportunity to restore a proper balance between the institutions that have been so integral to our success as a nation – to protect the rights of individuals, our vital national security and effective government.
These essential reforms will defend the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose: to hold the government to account, apply the intent of Parliament, and protect individuals.
The panel has recommended 2 immediate reforms:
Removing so-called ‘Cart judgments’ to prevent appeals in the Upper Tribunal being subject to judicial review in the High Court. Out of 5,502 such cases analysed by the panel, only 12 (or 0.22%) were upheld – demanding a disproportionate amount of judicial time. Cart judicial reviews, which stand hardly any chance of success, were found to have led to delays with the swift processing of immigration and asylum cases, with last-minute challenges often made to frustrate the removal of people with no right to be in this country.
Giving the courts the power to suspend Quashing Orders. Judges would be given greater flexibility in order to avoid rushed policy solutions when government errors are identified. Currently, quashing orders issued by judges take effect immediately.
Under the proposals set out today, a court could set conditions and the quashing order would only take effect if these were not met after a certain period of time - allowing time to remedy the defects.
Today’s announcement is a significant step in delivering a key manifesto commitment to ensure the judicial review process is not open to abuse and delay. Ministers are determined to build on this important work by consulting on further measures informed by the panel’s analysis. Specifically:
Ensuring ouster clauses are given effect to, as Parliament intends. As Parliament is Sovereign, it can pass ‘ouster clauses’ – these define the bounds of the court’s jurisdiction in certain issues. They are used when Parliament thinks an issue should be decided by the courts, for example to prevent the courts being drawn into politics. This allows Parliament to determine areas which are unsuited to legal accountability, while still maintaining vital checks through parliamentary scrutiny. The consultation is looking at how such clauses can best be given effect to.
Introducing wider options for remedies. The proposal would give discretion to judges to order a remedy to be prospective-only in nature, increasing the range of tools available to the courts. This would ensure resources could be focussed on future solutions, rather than spending taxpayer money to fix past errors.
Nullity. The government will consider defining exactly how and when a use of power is automatically ‘null and void’.
Procedural reforms. Subject to the consultation, a range of efficiency proposals will be submitted to the Civil Procedure Rule Committee for their consideration.
The proposals seek to deliver on the Lord Chancellor’s duty to protect the independent judiciary and uphold the rule of law.
Today’s announcement delivers the first leg of the Government’s wider Commission on the Constitution Rights and Democracy, which includes the ongoing Independent Review of the Human Rights Act, and the Royal Commission on the Criminal Justice System which will launch this Summer.
Notes to Editors
The Independent Review on Administrative Law was launched in July last year: https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review
The full IRAL report and the government response can be found here: https://consult.justice.gov.uk/judicial-review-reform/judicial-review-proposals-for-reform
A brief summary of the Panel’s findings:
The Panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made.
There is a risk that reasoning of decision makers will increasingly be replaced, in essence, with that of the court. We should strive to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or Parliament.
The Panel proposed two reforms to substantive law: to reverse the effects of the Cart judgment and to introduce suspended quashing orders as a new remedy
On Cart Judgment:
The Review analysis found that 5,502 Cart judicial reviews have occurred since this route of Judicial Review was made available, but that in only 12 instances had an error of law been found.
That is an astonishingly low success rate of only 0.22%.
Given that each and every one of those 5,502 cases requires detailed judicial consideration, this is a huge amount of judicial resource being used to rectify a vanishingly small number of errors.
On Quashing Orders
The Panel concluded that the courts should have the ability to suspend quashing orders, mandating a time by which any administrative oversight should be corrected.
This is because courts are often forced into a stark choices between remedies, a suspended order would give the decision maker being challenged time to rectify any errors, instead of their decision being quashed from the outset.
On Civil Procedure Rules
The consultation will also consider whether to recommend to the Civil Procedure Rule Committee that they consider a range of procedural reforms to improve the efficiency of Judicial Review claims.
These will include:
Removing the promptness requirement to make space for pre-trial resolutions
Allowing parties to agree to extend the time limit for claims being brought
Formalising procedure on replying to an Acknowledgement of Service (as suggested by the Review)
Looking for improvements to the pre-action protocol to encourage pre-trial solutions
And several others which are detailed in the Consultation Document